It is time for lawmakers to revisit Oklahoma’s possession with intent to distribute law

Over the last six years, Oklahoma has seen a marked reduction in the number of people going to prison, with the largest reductions coming from drug convictions thanks to recent voter-approved justice reform efforts. However, there’s more lawmakers can do. In 2016, voters overwhelmingly approved State Question 780, which reclassified some felonies to misdemeanors, including simple possession of a controlled substance. In the first year after the law took effect, felony cases involving drug possession fell by nearly three-quarters, and overall prison admissions are down 21 percent — reducing the number of Oklahomans in prison and saving the state tens of millions of dollars in incarceration costs. 

Many drug-related charges still remain a felony, notably possession with intent to distribute — commonly referred to as PWID. While current state law sets quantity guidelines for other drug-related charges, Oklahoma’s statute does not clearly define when to charge someone with PWID. This can result in unequal enforcement of the law, with individuals carrying identical amounts of the same illegal substance given very different charges. During the 2023 legislative session, Oklahoma lawmakers should change the state’s PWID law to include objective statutory guidelines that provide clarity and consistency in charging decisions, regardless of where someone is arrested. Having clear guidelines for when to charge someone with PWID is necessary as it serves to safeguard against the discretion of law enforcement and the power of government. It also prevents arbitrary and discriminatory enforcement of the law.

Oklahoma’s PWID law gives too much power to law enforcement and district attorneys  

District attorneys have wide discretion in who they will charge with a crime and what charges they will levy. This “prosecutorial discretion” makes the district attorney one of the most powerful roles in Oklahoma’s criminal legal system. This power is further enhanced when laws are written without objective charging guidelines, essentially allowing DAs to leverage vagueness and ambiguity in the law. 

In Oklahoma, PWID is a felony that carries a potential seven year sentence. Compared to misdemeanors — which includes simple drug possession — felony convictions result in harsher penalties, including longer sentences and possible time in prison. They also come with higher monetary sanctions, trapping people in a cycle of court debt that can last for decades.

The current PWID law states it is illegal for someone to “possess with intent to manufacture, distribute or dispense, a controlled substance…” but provides no specific weight, quantity amount or any other objective requirement to signify an individual was likely to distribute that controlled substance. This vagueness opens the door for law enforcement and prosecutors to charge people with felony PWID even if their conduct more accurately fits misdemeanor simple possession of a controlled substance. 

The issue is compounded by the widespread use of plea bargains in which prosecutors and defendants agree to less punitive sentences if the defendant pleads guilty to the charges and waives their constitutional right to a trial. For example, a prosecutor may charge someone with a felony, but then offer to reduce the charges to a misdemeanor if the defendant pleads guilty instead of going to trial. These “deals” offered by prosecutors to defendants (the majority of whom remain in jail while awaiting trial) are made in an estimated 97 percent of all criminal cases. 

In the case of the PWID charge, criminal justice observers and advocates worried that recent justice reforms would create an increase in PWID charges due to the law’s vagueness in statutory guidelines along with the pervasiveness of plea deals. Indeed, this has been the case in some Oklahoma counties.

Some Oklahoma counties are charging more people with PWID since the implementation of SQ 780

Oklahoma voters in 2016 passed SQ 780, which reduced simple possession from a felony to a misdemeanor. As expected, this justice reform reduced the overall number of felonies in the state. However, Oklahoma saw a 14 percent increase in PWID filings immediately after SQ 780 implementation, with a high-water mark of more than 3,500 PWID filings in 2018. In the subsequent four years, statewide PWID filings have declined steadily, mostly driven by Tulsa and Oklahoma counties. In 2022, filings statewide were at their lowest level in eight years, a 55 percent decrease since 2018’s peak. 

However, this is not the case everywhere. Illustrating the pernicious effects of vague statutory guidance and practically unlimited prosecutorial discretion, several counties have actually increased their number of PWID filings since SQ 780 took effect. For example, in Cleveland County, filings increased from 2017 to 2020, with 2022 numbers remaining higher than before SQ 780 took effect. This is also true for Craig County with 2022 having one of the county’s highest number of filings since at least 2014. With PWID filings increasing after SQ 780 implementation, these counties show a different trend than the majority of the state, suggesting that PWID laws may not be applied equitably across the state. In Oklahoma County and Tulsa County, filings have declined precipitously since 2018, with both places seeing the lowest PWID filings since any year in the last decade. Although most assume justice is applied with impartiality, this shows that the “justice” someone receives may depend on where they live or are arrested. This lack of consistency can further undermine public confidence in the fairness and impartiality of the legal system.

Lawmakers should adopt better charging guidelines for PWID 

When voters passed SQ780, they showed they wanted to address the underlying issues behind Oklahoma’s nation-leading incarceration crisis, along with decreasing the number of Oklahomans whose lives were ruined by felony convictions for simple drug possession. In a few counties, however, the impact has not been the same for everyone. This year, Oklahoma lawmakers should consider clarifying the PWID statute to include a presumption of simple possession of a controlled substance unless a prosecutor can show clear evidence pointing to an intent to distribute drugs. In other words, law enforcement and district attorneys should have to show not only the presence of a controlled substance, but additional factors that point to distribution. 

Rep. Daniel Pae, R-Lawton, has introduced legislation that would shift the burden of proof to law enforcement and prosecutors to show three out of five enumerated factors. This includes factors such as evidence of a drug related transaction and items for distribution — like weighing scales, baggies, and possession of multiple drugs. If a prosecutor can’t prove those factors, the law would still allow for the felony PWID charge if any other “relevant and admissible evidence” pointed to intent to distribute. This change ensures fairness in charging decisions moving forward and brings the state in line with national best-practices. This would also make plea bargains in these cases less coercive, removing the ability for prosecutors to charge felony PWID to pressure a defendant into a misdemeanor guilty plea. 

Policymakers should clarify felony possession with intent to distribute to distinguish it from simple possession of a controlled substance

Our laws should have clear and objective charging guidelines to ensure that they are applied consistently and fairly, without discrimination or bias. Data shows that possession laws in particular are often applied unequally, devastating Black communities and other communities of color. Subjective charging decisions can lead to arbitrary and unequal enforcement of the law, with individuals being charged differently for the same offense based on the discretion of the prosecutor. Furthermore, without objective charging guidelines, there is a greater potential for government overreach and abuse of power. Otherwise, prosecutors may be incentivized to charge individuals with more severe offenses, pressuring defendants into taking a misdemeanor conviction plea bargain, and securing a conviction for the state while avoiding a trial. Clear guidelines for when to charge someone with a crime provides an important check on the discretion of prosecutors and the power of the government, promoting fairness and justice for all Oklahomans.